Long Meadow Homeowners' Ass'n, Inc. v. Harland, 2009–CA–01775–COA.
| Decision Date | 27 September 2011 |
| Docket Number | No. 2009–CA–01775–COA.,2009–CA–01775–COA. |
| Citation | 89 So.3d 591 |
| Parties | LONG MEADOW HOMEOWNERS' ASSOCIATION, INC., William H. Arnold, Carol K. Arnold, Kenneth G. Barron, Sylvia D. Barron, Alan B. Cameron, Mary D. Cameron, Joseph B. Christman, Leah M. Christman, Clyde H. Coltharp, Mary Frances Coltharp, Rebecca Ann Culver, Tristan Denley, Kimberly Denley, Robert Byron Ellis, Suzete M. Ellis, Aubrey O'Neal Farrar, Cynthia Leigh Farrar, Charles D. Hufford, Alice C. Hufford, E. Jeff Justis, Sally V. Justis, Scott B. Lennard, Elaine A. Lennard, Timothy J. Mays, Carla Janene Mays, Glenn R. Parsons, Cheryl B. Parsons, James C. Propes, Charlotte C. Propes, Rick N. Rafinson, Bonnie S. Rafinson, Roderick N. Rafinson, Diana G. Rafinson, Jimmy Earl Shankle, Margaret Shankle, Robert C. Speth, Janet F. Speth, Allen Spurgeon, Debra Spurgeon, Julien Tatum and Christine B. Tatum, Appellants v. Ernest C. HARLAND and Bonnie S. Harland, Appellees. |
| Court | Mississippi Court of Appeals |
OPINION TEXT STARTS HERE
Kenneth A. Rutherford, Oxford, attorney for appellants.
Lawrence Lee Little, Tara Beth Scruggs, Oxford, attorneys for appellees.
EN BANC.
GRIFFIS, P.J., for the Court:
¶ 1. Ernest and Bonnie Harland purchased three lots within phase three of the Long Meadow subdivision, a residential subdivision in Lafayette County, Mississippi, with the intention of building a church on the property. The Long Meadow Homeowners' Association, Inc. objected to the building of a church and claimed that the protective covenants applicable to otherlots within phases one and two of the subdivision did not permit the building of a church.
¶ 2. The Harlands filed suit in the Lafayette County Chancery Court and asked the court to determine whether a church could be built on the property they had purchased. The court found in favor of the Harlands. The Homeowners' Association appealed and asserted several issues: (1) whether protective covenants imposed on phase one and phase two are also applicable to phase three, (2) whether the court erred in refusing to estop the Harlands from building a church on the property, (3) whether the court erred in granting the Harlands' motion to set aside the corrected warranty deed, and (4) whether the court erred in holding the covenants filed with the original warranty deed were valid. We find no error and affirm.
FACTS
¶ 3. The Long Meadow subdivision was developed by Robert and Carroll Leavell. It is composed of forty-nine separate platted lots. The Leavells developed the subdivision in three distinct phases.
¶ 4. In 1993, plats for the first two phases of the subdivision were prepared and filed for record in the chancery clerk's office. These plats included protective covenants that permitted the property to be used for residential purposes only. The covenants defined residential use as one single-family residence for each four acres.
¶ 5. In 1994, a plat for phase three was filed for record in the chancery clerk's office. Phase three encompassed lots one to twelve, and the plat did not include any protective covenants.
¶ 6. As phase three was being developed, the Leavells included certain covenants and restrictions in each individual deed. Of the twelve lots in phase three, the deed for nine of the lots included a protective covenant that permitted only residential use, and it defined residential use to include the building of churches and schools. The deed for two lots included a protective covenant that permitted only residential use, but it defined residential use to include one single-family dwelling structure for each four acres. The deed for the remaining lot included a protective covenant that permitted only residential use, but it defined residential use to include single- or double-family dwelling structures.
¶ 7. The Harlands were interested in the purchase of three lots within phase three to build a church. They approached the Leavells and discussed a possible transaction. In November 2006, the Harlands made an offer to the Leavells to purchase the three lots. The Harlands' contract included a contingency agreement, which stated that the contract would be considered void if construction of a church was not permissible. The contract read: “If a church cannot be built on the property, that is to say if this permission to build a church has not been obtained by May 15, 2007, this contract is voidable at the option of the Purchasers and the $5,000.00 earnest money will be returned.”
¶ 8. Consistent with the covenants included in previous deeds,1 the Leavells included a protective covenant in the deed that specified that the property could be used for residential use only and defined the term residential use to include churches and church buildings.
¶ 9. On February 5, 2007, when they learned of the Harlands' intention to build a church on the property, members of the Homeowners' Association registered their objections to the building of a church within the subdivision. Despite knowledge of the objections, the Leavells conveyed lots two, three, and four to the Harlands by a deed, which included a covenant that specifically permitted the building of a church. The language of the deed stated: The deed was recorded in the county land records on May 22, 2007.
¶ 10. On May 28, 2008, counsel for the Homeowners' Association prepared a corrected warranty deed. The corrected warranty deed included covenants that allowed only one single-family residential structure for each four acres. A copy of the proposed corrected warranty deed was provided to the Leavells, with the request that the Leavells execute and deliver the deed to the Harlands. The Harlands notified the Leavells that they declined to accept the terms of the proposed corrected warranty deed. The proposed corrected warranty deed was recorded among the land records on July 15, 2008. The corrected warranty deed would change the covenants in the Harlands' deed to prohibit the building of a church.
¶ 11. The Harlands filed a lawsuit and asked the court to set aside the corrected warranty deed, vacate lots two, three, and four from the official plat of the subdivision or validate the protective covenants included in their deed, which allowed a church to be constructed on the subject property. The chancellor ruled in favor of the Harlands. The chancellor validated the covenants included within the original conveyance and set aside the corrected warranty deed. It is from this judgment that the Homeowners' Association appeals.
ANALYSIS
¶ 12. The chancellor's findings of fact shall not be disturbed on appeal unless the findings are “manifestly wrong, clearly erroneous, or not supported by substantial credible evidence.” City of Picayune v. S. Reg'l Corp., 916 So.2d 510, 518 (¶ 22) (Miss.2005) (citing Brown v. Miss. Dep't of Human Servs., 806 So.2d 1004, 1005 (¶ 4) (Miss.2000)). While deference is given to the chancellor's determinations of fact, this Court retains a de novo review of all questions of law. Id. at 519 (¶ 23).
¶ 13. The Homeowners' Association argues that the covenants imposed on phase one and phase two should also apply to phase three. The Homeowners' Association alleges that the Leavells represented to residents within the subdivision that the entirety of the property would be governed by covenants which allowed the development of only one single-family residential structure for each four acres.
¶ 14. For the covenants imposed on phase one and phase two to apply to phase three, the covenants must be real covenants and run with the land. Vulcan Materials Co. v. Miller, 691 So.2d 908, 913 (Miss.1997). The Mississippi Supreme Court has held that a covenant must meet the following criteria to run with the land: “(1) the covenanting parties must intend to create such covenant; (2) privity of estate must exist between the person claiming right to enforce the covenant and the person upon whom burden of covenant is to be imposed; and (3) the covenant must ‘touch and concern’ the land in question.” Hearn v. Autumn Woods Office Park Prop. Owners Ass'n, 757 So.2d 155, 158 (¶ 12) (Miss.1999).
¶ 15. The record provides no evidence to suggest that the Leavells intended for the covenants imposed on phase one and phase two to apply to phase three. The Leavells recorded protective covenants when filing the plats for phases one and two, but the Leavells chose not to record covenants when filing the plat for phase three. Instead, covenants were included within the deeds to each individual lot. Of the twelve lots located in phase three, nine were conveyed by a deed including a protective covenant that permitted only residential use and defined the term residential use to include churches and schools. Of those nine, five lots were conveyed by deeds that were recorded prior to the Harlands' expression of interest in purchasing property. Two lots within phase three were conveyed with covenants that allowed the development of only one single-family residential structure for each four acres. The one remaining lot within phase three was conveyed with covenants permitting single-or double-family residences.
¶ 16. The Leavells conveyed the property to the Harlands and included a covenant in the deed that specifically permitted construction of a church on the property, stating:
The term “residential” shall include churches and shall not prevent structures used for church purposes. The term “residential” shall also include public or private utility structures, garages or carports, storage buildings and the like which usually accompany residential structures.
¶ 17. We agree with the chancellor's holding that the intent of the Leavells was not to impose the same covenants referenced within phase one and two, but to vary the covenants within phase three according to the...
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Long Meadow Homeowners' Ass'n, Inc. v. Harland
...of Appeals. The Court of Appeals, finding no error, affirmed the judgment of the chancery court. Long Meadow Homeowners' Ass'n, Inc., et al. v. Harland, 89 So.3d 591 (Miss.Ct.App.2011). This Court granted Long Meadow's Petition for Writ of Certiorari. Long Meadow, 78 So.3d 906 (Table) (Miss......